Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01319/2016

THE IMMIGRATION ACTS

Heard at Field House, London
Decision & Reasons Promulgated
On the 14th October 2016
On 26th October 2016

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between:
A. L.
(Anonymity Direction made)
Claimant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant in the Upper Tribunal

Representation:
For the Claimant: Miss Reid (Counsel)
For the Secretary of State: Mr Walker (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is the Secretary of State's appeal against the decision of First-tier Tribunal Judge Birk promulgated on the 31st August 2016, in which she allowed the Claimant's asylum appeal. Although First-tier Tribunal Judge Birk did not accept that the Claimant was a victim of trafficking or had been sold into prostitution as claimed, she found that the Claimant would be returned to Albania as either a woman who was still married but was returning with a child born out of wedlock, or as a single woman who had had an illegitimate child at [27] and that she would be at a risk of persecution due to being a member of a particular social group, namely a lone woman with an illegitimate child and that she did qualify for protection under the Refugee Convention. She therefore allowed the Claimant's asylum appeal.
2. The Secretary of State has now sought to appeal against that decision for the reasons set out within the Grounds of Appeal. This is a matter of record and is therefore not repeated in its entirety here, but in summary, it is argued that the Judge's finding at [27] that the Claimant was either a woman who was still married but now returning with a child born out of wedlock or she was a single woman who had had an illegitimate child had not been reasoned at all, and that given the rejection of the Claimant's credibility in respect of the trafficking claim that the 'negative pull of the lie' should at least raise a possibility that the child was her husband's, given that she was found not to be a victim of domestic violence.
3. It was further argued within the Grounds of Appeal that at paragraph 28 the Judge noted that the Claimant was from a religious Muslim family and that that was not a reasoned finding and that again given the Claimant's lack of credibility, accepting her evidence on that point ignored the fact that she had not given a truthful account. It was further argued at paragraph 5 of the Grounds of Appeal that the Judge's findings at paragraph 34 that she would be pursued and persecuted by family members was wrong and that there was nothing on the papers, including the Judge's summary of the claim at paragraph 5 to indicate that that was something that the Claimant had claimed she feared. The grounds further argue at paragraph 6 that given the negative credibility findings that the Judge had neither identified which non-state actors would have an adverse interest in the Claimant, nor had she given adequate reasons as to why they would have an adverse interest in her.
4. Permission to appeal was granted by First-tier Tribunal Judge Froom, on the 22nd September 2016, when he found that:
"Permission is granted because it is arguable that the FTTJ failed to give adequate reasons for accepting such matters as the child's illegitimacy and family's religiously motivated intolerance given the wholesale adverse credibility findings made about the Appellant's asylum claim at paragraphs 18, 20, 21, 23 and 25."
5. Within the Rule 24 Reply, which again is a matter of record and is therefore not repeated in full here, it is argued, inter alia, by the Claimant that the Secretary of State had not challenged the evidence that the Claimant's son was conceived out of wedlock and that she would be returning with an illegitimate child, and it is said that neither was it the Secretary of State's case that the father of the child was the Claimant's husband. It is argued that the Secretary of State is simply seeking to reargue the appeal in light of the findings made by the Judge and that the Secretary of State did not challenge the Claimant's evidence that she was from a religious family. It is argued that where facts are not disputed between the parties, a Judge is not required to give expansive reasons for accepting an unchallenged version of events and that the Grounds of Appeal amount to no more than a mere disagreement with the findings made by the Judge. The Claimant further argues that the Judge has made findings on disputed facts which were consistent with her treating the Claimant as a woman returning to Albania with an illegitimate child and in particular the Claimant relied upon paragraph 17 of the decision in that regard and that although the Judge had made findings that the Claimant was not a victim of trafficking, it was said that the Judge had found that the Claimant could have been deceived by 'A' and become pregnant, which was argued to be consistent with the Judge treating the Claimant as a lone female, whether or not previously married, returning with an illegitimate child. The Claimant asked that the appeal be dismissed.
6. It was on that basis that the appeal came before me in the Upper Tribunal.
7. In his oral submissions, Mr Walker on behalf of the Secretary of State argued that the Grounds of Appeal clearly set out the reasons challenge to the decision. He argued that the Judge made clear adverse credibility findings at paragraph 18 of the decision and had rejected the trafficking account, but he argued the Judge had not properly explained the findings made at paragraph 27 regarding the Claimant being a woman who was either still married and returning with a child born out of wedlock or being a single woman who had had an illegitimate child, and in respect of the finding at paragraph 28 that coming from a religious Muslim family she was highly unlikely to be given support by her family or other relatives. Mr Walker conceded that in light of paragraph 20 of the Claimant's statement in which she did say that she did fear persecution from her parents and her husband, that paragraph 5 of the Grounds of Appeal fell away, but he argued that given the negative credibility findings, the Judge's reasoning in respect of the conclusion reached that the Claimant was entitled to asylum had not been adequately explained. He argued that if there was a material error, given that credibility was in issue, the decision of First-tier Tribunal Judge Birk should be set aside in its entirety and he did not seek to persuade me that there should be any preserved findings of fact. He said that the hearing should be a de novo hearing, given that credibility was in issue.
8. In her submissions on behalf of the Claimant, Miss Reid relied upon her Rule 24 Reply. She further sought to argue that the Judge had made clear findings that the Claimant was a single woman returning with an illegitimate child and would therefore be at risk upon return. She argued that it was never the Secretary of State's case that her child was the child of her husband. She argued that within the Secretary of State's original refusal notice dated the 20th January 2016, that in the paragraphs dealing with internal relocation starting at paragraph 54 of the decision, at paragraph 55 it was said that "You state that you cannot go back to another area of Albania because the people you fear can find you wherever you go (AIR Q212) it is noted that you remained in Tirana; which is where your parents and husband lived from March 2014 until October 2014 (AIR question 57-59) and you have not stated that either your parents or your husband tried to find you there". Although she conceded that this was not a specific concession that the Claimant had lived in Tirana between March 2014 and October 2014, she argued that the Claimant's own case was that she had left her husband in March 2014 and moved to live with a friend named Albana who lived in Tirana. She argued that it was part of the Claimant's Supplemental Skeleton Argument that she was a lone female returning with an illegitimate child. She argued that the Judge had found at paragraph 17 of her decision that "As for those issues raised in the NRM letter, I find that it is not implausible or incredible that the Appellant would be unaware of the adverse intentions of 'A' and that this would necessarily be apparent just because he was a friend of her friend's boyfriend and if he was as she claimed sufficiently devious to deceive her then he could deceive others as to his true intentions. I also do not find any substance in the assertion by the Respondent that the Appellant's clients used contraceptive means that she cannot get pregnant in the first month since it is accepted that contraception does not 100% guarantee against pregnancies". Miss Reid argued that the Judge had therefore found that it was possible and credible that the Claimant could have become pregnant as claimed and that the Judge did not need to give substantial reasons for accepting facts which were not disputed. She argued that it had never been suggested that the child was her husband's by the Secretary of State and that the Judge was not required to make findings on that point.
9. In respect of the findings regarding the lack of support from her family and other relatives given the fact that it was said that her family were a religious Muslim family at paragraph 28 of the decision, Miss Reid argued that such a finding was justified on the basis of the Country Guidance cases, but accepted that in fact each case would turn on its own facts.
10. She further conceded that in respect of paragraph 34, the "other non-state actors" who were referred to, had not been identified by the First-tier Tribunal Judge.
11. Miss Reid did not accept that there were any material errors in the decision, but said that she had discussed the appeal with Mr Walker prior to the appeal commencing and that it had been agreed between them that if there were material errors found, the case should be remitted back to the First-tier Tribunal as a hearing de novo, with no preserved findings of fact.
My Findings on Error of Law and Materiality
12. At [25] of her decision, First-tier Tribunal Judge Birk found that "As her general credibility has been severely damaged, I find that she has not established that she was married or in a relationship with domestic violence. However, I have to consider her current position on return. I find that being a lone woman with an illegitimate child can be PSG.". Judge Birk further found at [27] that "I find that she is either a woman who is still married but is now returning with a child born out of wedlock or she is a single woman who had had an illegitimate child.".
13. The Judge at paragraph 18 of her decision, set out significant reasons as to why she rejected the Claimant's account in respect of being trafficked, and went on to give further reasons at paragraphs 20, 21, 23 and 25. She found specifically she had not provided a credible truthful account to escape from prostitution or of her journey to the UK and that this went sufficiently to the heart of her claim of being trafficked such that she did not accept the Claimant had established that she was induced to leave Albania and had then been sold into prostitution and that she did not accept that the Claimant had established that she was a victim of trafficking.
14. Although the Judge at paragraph 23 stated that "As her general credibility has been severely damaged I find that she has not established that she was married or in a relationship with domestic violence", this I consider to be somewhat inconsistent with the Judge's finding at paragraph 27 that "I find that she is either a woman who is still married but is now returning with a child born out wedlock or she is a single woman who had had an illegitimate child". The finding at paragraph 25 that she had not established she was married, appears inconsistent with the finding that she was either still married but returning with a child out of wedlock or a single woman who had had an illegitimate child at paragraph 27. In any event, in my judgement, the reasoning of the Judge for her findings at paragraph 27 that she was either a woman who was still married but now returning with a child out of wedlock or still a single woman who had had an illegitimate child, has not been either adequately or sufficiently explained. The Judge has simply made a bald finding in that regard, but has not given any clear or adequate reasons for finding that either she was still married but returning with a child out of wedlock or that she was a single woman who had had an illegitimate child. The fact that the Claimant's account of being trafficked had been rejected, did not in itself mean that her child was born out of wedlock or that she was single with an illegitimate child. Although the Claimant sought to rely upon paragraph 17 of the decision where the Judge stated that it was not implausible or incredible that the Claimant would be unaware of the adverse intentions of 'A' and that this would not have simply been apparent just because he was a friend of her friend's boyfriend as if he was as she claims sufficiently devious to deceive her then he could deceive others as to his true intentions, was not a finding that she had been deceived by 'A', and further, the findings from the Judge that she did not accept that there was any substance in the assertion by the Secretary of State that the Claimant's clients used contraceptives meant that she could not get pregnant within the first month since it was accepted that contraception was not a 100% guarantee against pregnancy, again was not an acceptance by the Judge that she had become pregnant having been trafficked and worked as a prostitute.
15. Although the Judge, as she quite properly had to do, had considered the factors both in favour and against the Claimant's credibility, quite clearly come down, after considering all the evidence, against the Claimant as being someone who had been trafficked. She found specifically that she had not established that she had been induced to leave Albania and sold into prostitution and had found specifically that she was not a victim of trafficking. However, the Judge has failed to explain adequately, her reasoning as to why in that circumstance, this would mean that the Claimant's child was born out of wedlock either to someone who was still married or that she would be single woman who had had an illegitimate child. The Judge's reasoning in paragraph 77 is just not apparent. It does not necessarily flow that the rejection of the trafficking claim in itself means that she was not in fact married or had had a child out of wedlock. I find that the Judge's failing in regards to explaining her reasoning in this regard, is a material error of law.
16. Further, I find that in respect of the Judge's findings at paragraph 28 that "I find that in coming from a religious Muslim family that she is highly unlikely to be given support by them or other relatives" again has not been adequately explained. It does not appear to have been accepted by the Secretary of State that the Claimant had come from a religious family, and in the absence of an acceptance of that fact, the Judge should have given adequate and sufficient reasons for her finding that the Claimant had come from a religious Muslim family and in particular in respect of her findings that the Claimant was highly unlikely to be given support by them or her other relatives. There is no reason put forward by the Judge as to why that was going to be the case. Although Miss Reid seeks to rely upon the Country Guidance in that regard, she rightly concedes that each case will turn on its own facts, and that even if in a religious Muslim family, that may mean that someone would be unlikely to be given support, as suggested by the Claimant, the Judge has not said that she has based her reasoning upon the Country Guidance and has given no reasons for coming to the conclusion that she did that the Claimant both was from a religious Muslim family and that she was highly unlikely to be given support by them or by her other relatives. The Judge's reasoning in that regard is wholly unclear as to the basis for the findings, and the lack of adequate and sufficient reasons in this regard also amounts to a material error of law.
17. Further, I find that at paragraph 34, although the Judge found that "I find that this indicates that there are real and serious difficulties that the Appellant will face upon return. I find that this indicates that this is a real likelihood that she will be pursued and persecuted by her family members and other non-state actors without adequate protection from the state upon her return", I do find that the Judge has not explained there who the "other non-state actors" might be who would be pursuing and persecuting her. This again has not been adequately and sufficiently explained.
18. I therefore do find that the Learned Judge has on this occasion, sadly erred in not adequately explaining her reasoning by finding that the Claimant either is a woman who is still married but now returning with a child born out of wedlock or that she is a single woman who had had an illegitimate child at paragraph 27, and for her findings that the Claimant came from a religious Muslim family and that she is highly unlikely to be given support them or other relatives at paragraph 28 and that in addition to being pursued and persecuted by her family members, there would be other non-state actors who would be wishing to persecute or pursue her at paragraph 34. The Judge's lack of adequate and sufficient reasoning in this regard, means that the decision does contain material errors of law, and in such circumstances I do set aside the decision of First-tier Tribunal Judge Birk. As was agreed between the parties, given that credibility is in issue, I do find that the decision of First-tier Tribunal Judge Birk should be set aside in its entirety, with no preserved findings of fact and that the matter should be remitted back to the First-tier Tribunal for rehearing as a hearing de novo, before any First-tier Tribunal Judge other than First-tier Tribunal Judge Birk.
Notice of Decision
The decision of First-tier Tribunal Judge Birk does contain material errors of law and is set aside.
The appeal is remitted back to the First-tier Tribunal for rehearing as a hearing de novo, before any First-tier Tribunal Judge other than First-tier Tribunal Judge Birk.
The Claimant is granted anonymity in this case. The Claimant was granted anonymity in the First-tier Tribunal, and given the nature of the issues raised, it is appropriate for the Claimant to be still granted anonymity in the Upper Tribunal. Unless and until a Tribunal or Court otherwise directs, the Claimant is thereby granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the Claimant and to the Secretary of State. Failure to comply with this direction could lead to contempt of Court proceedings.

Signed
R. F. McGinty
Deputy Upper Tribunal Judge McGinty Dated 14th October 2016